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7.9 - Final Report

State and territory governments should establish nationally consistent legislative schemes (reportable conduct schemes), based on the approach adopted in New South Wales, which obliges heads of institutions to notify an oversight body of any reportable allegation, conduct or conviction involving any of the institution’s employees.

This recommendation requires further consideration.

Various mechanisms exist in South Australia that enable government bodies or statutory officers to oversee aspects of child protection matters, including the following established under the Children and Young People (Oversight and Advocacy Bodies) Act 2016:

  • Guardian for Children and Young People: all allegations of child sexual abuse in out-of-home care are reported to the guardian, who keeps a record of matters and engages with the police and the Care Concerns Investigation Unit of the Department for Child Protection
  • Commissioner for Children and Young People
  • Child Death and Serious Injury Review Committee
  • Child Development Council.

These were tested and strengthened following South Australia’s 2016 Child Protection Systems Royal Commission, which investigated the adequacy of existing laws and policies in the state’s child protection system for children at risk of harm (including children at risk of sexual abuse).

The Government of South Australia is currently investigating the need for, and potential impact of, a reportable conduct scheme on South Australia’s existing mechanisms that enable oversight of employees working with children. It is anticipated the review will be completed by the end of 2019.

Government response: For further consideration
Lead agency: Attorney-General's Department (AGD)
Recommendation progress status: For further consideration

7.10 - Final Report

Reportable conduct schemes should provide for:

  1. an independent oversight body
  2. obligatory reporting by heads of institutions
  3. a definition of reportable conduct that covers any sexual offence, or sexual misconduct, committed against, with, or in the presence of, a child
  4. a definition of reportable conduct that includes the historical conduct of a current employee
  5. a definition of employee that covers paid employees, volunteers and contractors
  6. protection for persons who make reports in good faith
  7. oversight body powers and functions that include:
    1. scrutinising institutional systems for preventing reportable conduct and for handling and responding to reportable allegations, or reportable convictions
    2. monitoring the progress of investigations and the handling of complaints by institutions
    3. conducting, on its own motion, investigations concerning any reportable conduct of which it has been notified or otherwise becomes aware
    4. power to exempt any class or kind of conduct from being reportable conduct
    5. capacity building and practice development, through the provision of training, education and guidance to institutions
    6. public reporting, including annual reporting on the operation of the scheme and trends in reports and investigations, and the power to make special reports to parliaments.

See response to Recommendation 7.09.

Government response: For further consideration
Lead agency: Attorney-General's Department (AGD)
Recommendation progress status: For further consideration

7.11 - Final Report

State and territory governments should periodically review the operation of reportable conduct schemes, and in that review determine whether the schemes should cover additional institutions that exercise a high degree of responsibility for children and involve a heightened risk of child sexual abuse.

See response to Recommendation 7.09.

Government response: For further consideration
Lead agency: Attorney-General's Department (AGD)
Recommendation progress status: For further consideration

7.12 - Final Report

Reportable conduct schemes should cover institutions that:

  • exercise a high degree of responsibility for children
  • engage in activities that involve a heightened risk of child sexual abuse, due to institutional characteristics, the nature of the activities involving children, or the additional vulnerability of the children the institution engages with.

At a minimum, these should include institutions that provide:

  1. accommodation and residential services for children, including:
    1. housing or homelessness services that provide overnight beds for children and young people
    2. providers of overnight camps.
  2. activities or services of any kind, under the auspices of a particular religious denomination or faith, through which adults have contact with children
  3. childcare services, including:
    1. approved education and care services under the Education and Care Services National Law
    2. approved occasional care services.
  4. child protection services and out-of-home care, including:
    1. child protection authorities and agencies
    2. providers of foster care, kinship or relative care
    3. providers of family group homes
    4. providers of residential care.
  5. disability services and supports for children with disability, including:
    1. disability service providers under state and territory legislation
    2. registered providers of supports under the National Disability Insurance Scheme.
  6. education services for children, including:
    1. government and non-government schools
    2. TAFEs and other institutions registered to provide senior secondary education or training courses for overseas students or student exchange programs.
  7. health services for children, including:
    1. government health departments and agencies, and statutory corporations
    2. public and private hospitals
    3. providers of mental health and drug or alcohol treatment services that have inpatient beds for children and young people.
  8. justice and detention services for children, including:
    1. youth detention centres
    2. immigration detention facilities.

See response to Recommendation 7.09.

Government response: For further consideration
Lead agency: Attorney-General's Department (AGD)
Recommendation progress status: For further consideration

8.1 - Final Report

To allow for delayed disclosure of abuse by victims and take account of limitation periods for civil actions for child sexual abuse, institutions that engage in child-related work should retain, for at least 45 years, records relating to child sexual abuse that has occurred or is alleged to have occurred.

Changes to General Disposal Schedule 30 for State Government agencies were made that meet the requirements of recommendation 8.1.  The State Records Council approved the changes in June 2019.  Similar changes to General Disposal Schedule 40 for Local Government are to be approved by the Council in December 2019.

Government response: Accepted in principle
Lead agency: State Records (AGD)
Recommendation progress status: Complete

8.02 - Final Report

The National Archives of Australia and state and territory public records authorities should ensure that records disposal schedules require that records relating to child sexual abuse that has occurred or is alleged to have occurred be retained for at least 45 years.

Changes to General Disposal Schedule 30 for State Government agencies were made that meet the requirements of recommendation 8.1.  The State Records Council approved the changes in June 2019.  Similar changes to General Disposal Schedule 40 for Local Government are to be approved by the Council in December 2019.

Government response: Accepted in principle
Lead agency: State Records (AGD)
Recommendation progress status: Complete

8.3 - Final Report

The National Archives of Australia and state and territory public records authorities should provide guidance to government and non-government institutions on identifying records which, it is reasonable to expect, may become relevant to an actual or alleged incident of child sexual abuse; and on the retention and disposal of such records.

The national guidance was drafted and approved by the Council of Australasian Archives and Records Authorities (CAARA) in August 2019.  The guidance is available via the CAARA website.  Individual states and territories (including South Australia) are replicating this guidance for their jurisdictions.

Government response: Accepted
Lead agency: State Records (AGD)
Recommendation progress status: Complete

8.4 - Final Report

All institutions that engage in child-related work should implement the following principles for records and recordkeeping, to a level that responds to the risk of child sexual abuse occurring within the institution.

Principle 1: Creating and keeping full and accurate records relevant to child safety and wellbeing, including child sexual abuse, is in the best interests of children and should be an integral part of institutional leadership, governance and culture.

  • Institutions that care for or provide services to children must keep the best interests of the child uppermost in all aspects of their conduct, including recordkeeping. It is in the best interest of children that institutions foster a culture in which the creation and management of accurate records are integral parts of the institution’s operations and governance.

Principle 2: Full and accurate records should be created about all incidents, responses and decisions affecting child safety and wellbeing, including child sexual abuse.

  • Institutions should ensure that records are created to document any identified incidents of grooming, inappropriate behaviour (including breaches of institutional codes of conduct) or child sexual abuse and all responses to such incidents.
  • Records created by institutions should be clear, objective and thorough. They should be created at, or as close as possible to, the time the incidents occurred, and clearly show the author (whether individual or institutional) and the date created.

Principle 3: Records relevant to child safety and wellbeing, including child sexual abuse, should be maintained appropriately.

  • Records relevant to child safety and wellbeing, including child sexual abuse, should be maintained in an indexed, logical and secure manner. Associated records should be collocated or cross-referenced to ensure that people using those records are aware of all relevant information.

Principle 4: Records relevant to child safety and wellbeing, including child sexual abuse, should only be disposed of in accordance with law or policy.

  • Records relevant to child safety and wellbeing, including child sexual abuse, must only be destroyed in accordance with records disposal schedules or published institutional policies.
  • Records relevant to child sexual abuse should be subject to minimum retention periods that allow for delayed disclosure of abuse by victims, and take account of limitation periods for civil actions for child sexual abuse.

Principle 5: Individuals’ existing rights to access, amend or annotate records about themselves should be recognised to the fullest extent.

  • Individuals whose childhoods are documented in institutional records should have a right to access records made about them. Full access should be given unless contrary to law. Specific, not generic, explanations should be provided in any case where a record, or part of a record, is withheld or redacted.
  • Individuals should be made aware of, and assisted to assert, their existing rights to request that records containing their personal information be amended or annotated, and to seek review or appeal of decisions refusing access, amendment or annotation.

Guidance highlighting the principles recommended in 8.4 has been developed and approved by the Council of Australasian Archives and Records Authorities (CAARA). The guidance is available via the CAARA website. State Records, along with other jurisdictions, are making this available via their websites. State Records continues to provide advice and assistance, including the development of policy, which is based on these principles.

Government response: Accepted
Lead agency: State Records (AGD)
Recommendation progress status: Complete

9.01 - Final Report

The Australian Government and state and territory governments should fund dedicated community support services for victims and survivors in each jurisdiction, to provide an integrated model of advocacy and support and counselling to children and adults who experienced childhood sexual abuse in institutional contexts.

Funding and related agreements should require and enable these services to:

  1. be trauma-informed and have an understanding of institutional child sexual abuse
  2. be collaborative, available, accessible, acceptable and high quality
  3. use case management and brokerage to coordinate and meet service needs
  4. support and supervise peer-led support models.

The Government of South Australia acknowledges the importance of programs and services for victims and survivors of institutional child sexual abuse.

The Attorney-General’s Department is working with the Commissioner for Victims’ Rights to review the South Australian victim support sector and to determine the most effective way to meet these recommendations and deliver the best outcome for victims and survivors.

Government response: Accepted in principle
Lead agency: Attorney-General's Department (AGD)
Recommendation progress status: Planning

9.2 - Final Report

The Australian Government and state and territory governments should fund Aboriginal and Torres Strait Islander healing approaches as an ongoing, integral part of advocacy and support and therapeutic treatment service system responses for victims and survivors of child sexual abuse. These approaches should be evaluated in accordance with culturally appropriate methodologies, to contribute to evidence of best practice.

The Government of South Australia recognises the importance of culturally appropriate programs and services for Aboriginal and Torres Strait Islander victims and survivors of institutional child sexual abuse. The Attorney-General’s Department is working with the Commissioner for Victims’ Rights to review the South Australian victim support sector and to determine the most effective way to meet these recommendations and deliver the best outcome for victims and survivors.

Government response: Accepted in principle
Lead agency: Attorney-General's Department (AGD)
Recommendation progress status: Planning

9.03 - Final Report

The Australian Government and state and territory governments should fund support services for people with disability who have experienced sexual abuse in childhood as an ongoing, integral part of advocacy and support and therapeutic treatment service system responses for victims and survivors of child sexual abuse.

The Government of South Australia recognises the importance of dedicated support services for victims and survivors with a disability.

The Attorney-General’s Department is working with the Commissioner for Victims’ Rights to review the South Australian victim support sector and to determine the most effective way to meet these recommendations and deliver the best outcome for victims and survivors.

Government response: Accepted in principle
Lead agency: Attorney-General's Department (AGD)
Recommendation progress status: Planning

17.1 - Final Report

The Australian Government and state and territory governments should each issue a formal response to this Final Report within six months of it being tabled, indicating whether our recommendations are accepted, accepted in principle, rejected or for further consideration.

On 14 June 2018, the Government of South Australia released its Response to the Final Report of the Royal Commission into Institutional Responses to Child Sexual Abuse. The Response is available from www.childprotection.sa.gov.au/royal-commission.

Government response: Accepted
Lead agency: Attorney-General's Department (AGD)
Recommendation progress status: Complete

1 - Criminal Justice Report

In relation to child sexual abuse, including institutional child sexual abuse, the criminal justice system should be reformed to ensure that the following objectives are met:

  1. the criminal justice system operates in the interests of seeking justice for society, including the complainant and the accused
  2. criminal justice responses are available for victims and survivors
  3. victims and survivors are supported in seeking criminal justice
    responses.

The Government of South Australia endorses these principles and will continue to work towards their achievement, including via the measures discussed in response to the recommendations of the Royal Commission, and as further described in response to individual recommendations contained in the Criminal Justice Report.

Government response: Accepted
Lead agency: Attorney-General's Department (AGD)
Recommendation progress status: Implementing

21 - Criminal Justice Report

Each state and territory government should introduce legislation to amend its persistent child sexual abuse offence so that:

  1. the actus reus is the maintaining of an unlawful sexual relationship
  2. an unlawful sexual relationship is established by more than one unlawful sexual act
  3. the trier of fact must be satisfied beyond reasonable doubt that the unlawful sexual relationship existed but, where the trier of
    fact is a jury, jurors need not be satisfied of the same unlawful sexual acts
  4. the offence applies retrospectively but only to sexual acts that were unlawful at the time they were committed
  5. on sentencing, regard is to be had to relevant lower statutory maximum penalties if the offence is charged with retrospective
    application.

Legislation implementing this recommendation was introduced into the Criminal Law Consolidation Act 1935 via the Statutes Amendment (Attorney-General’s Portfolio) (No 2) Act 2017, which passed Parliament in October 2017.

Recommendation 21(e) was not implemented in accordance with the recommendation, but additional provisions relating to sentencing were included instead to address the impact of the High Court decision in Chiro v R [2017] HCA 37 (which was delivered after the recommendation was made).

Government response: Accepted
Lead agency: Attorney-General's Department (AGD)
Recommendation progress status: Complete

22 - Criminal Justice Report

The draft provision in Appendix H provides for the recommended reform. Legislation to the effect of the draft provision should be introduced.

See response to recommendation 21.

Government response: Accepted
Lead agency: Attorney-General's Department (AGD)
Recommendation progress status: Complete

23 - Criminal Justice Report

State and territory governments (other than Victoria) should consider introducing legislation to establish legislative authority for course of conduct charges in relation to child sexual abuse offences if legislative authority may assist in using course of conduct charges.

This recommendation is under consideration along with other recommendations for legislative amendment.

Government response: For further consideration
Lead agency: Attorney-General's Department (AGD)
Recommendation progress status: Planning

24 - Criminal Justice Report

State and territory governments should consider providing for any of the two or more unlawful sexual acts that are particularised for the maintaining an unlawful sexual relationship offence to be particularised as courses of conduct.

This recommendation is under consideration along with other recommendations for legislative amendment.

Government response: For further consideration
Lead agency: Attorney-General's Department (AGD)
Recommendation progress status: Planning

25 - Criminal Justice Report

To the extent they do not already have a broad grooming offence, each state and territory government should introduce legislation to amend its criminal legislation to adopt a broad grooming offence that captures any communication or conduct with a child undertaken with the intention of grooming the child to be involved in a sexual offence.

The existing South Australian provision (section 63B of the Criminal Law Consolidation Act 1935) is already consistent with this recommendation. However, further consideration is being given as to whether clarification of terminology or application of the Act might be of benefit.

Government response: Accepted
Lead agency: Attorney-General's Department (AGD)
Recommendation progress status: Implementing

26 - Criminal Justice Report

Each state and territory government (other than Victoria) should introduce legislation to extend its broad grooming offence to the grooming of persons other than the child.

The existing South Australian provision (section 63B of the Criminal Law Consolidation Act 1935), is already consistent with this recommendation.

Government response: Accepted
Lead agency: Attorney-General's Department (AGD)
Recommendation progress status: Complete

27 - Criminal Justice Report

State and territory governments should review any position of authority offences applying in circumstances where the victim is 16 or 17 years of age and the offender is in a position of authority (however described) in relation to the victim. If the offences require more than the existence of the relationship of authority (for example, that it be ‘abused’ or ‘exercised’), states and territories should introduce legislation to amend the offences so that the existence of the relationship is sufficient.

The existing South Australian provisions (contained in Part 3, Divisions 11 and 11A of the Criminal Law Consolidation Act 1935) are already consistent with this recommendation.

Government response: Accepted
Lead agency: Attorney-General's Department (AGD)
Recommendation progress status: Complete

28 - Criminal Justice Report

State and territory governments should review any provisions allowing consent to be negatived in the event of sexual contact between a victim of 16 or 17 years of age and an offender who is in a position of authority (however described) in relation to the victim. If the provisions require more than the existence of the relationship of authority (for example, that it be ‘abused’ or ‘exercised’), state and territory governments should introduce legislation to amend the provisions so that the existence of the relationship is sufficient.

The existing South Australian provisions (contained in Part 3, Divisions 11 and 11A of the Criminal Law Consolidation Act 1935) are already consistent with this recommendation.

Government response: Accepted
Lead agency: Attorney-General's Department (AGD)
Recommendation progress status: Complete

29 - Criminal Justice Report

If there is a concern that one or more categories of persons in a position of authority (however described) may be too broad and may catch sexual contact which should not be criminalised when it is engaged in by such persons with children above the age of consent, state and territory governments could consider introducing legislation to establish defences such as a similar-age consent defence.

This recommendation is under consideration along with other recommendations for legislative amendment.

Government response: Accepted in principle
Lead agency: Attorney-General's Department (AGD)
Recommendation progress status: Planning

30 - Criminal Justice Report

State and territory governments should introduce legislation to remove any remaining limitation periods, or any remaining immunities, that apply to child sexual abuse offences, including historical child sexual abuse offences, in a manner that does not revive any sexual offences that are no longer in keeping with community standards.

This recommendation did not require any legislative amendment in South Australia, as it had already been achieved by the introduction of section 72A into the Criminal Law Consolidation Act 1935 in 2003.

Government response: Accepted
Lead agency: Attorney-General's Department (AGD)
Recommendation progress status: Complete

33 - Criminal Justice Report

Each state and territory government should introduce legislation to create a criminal offence of failure to report targeted at child sexual abuse in an institutional context as follows:

  1. the failure to report offence should apply to any adult person who:
    1. is an owner, manager, staff member or volunteer of a relevant institution – this includes persons in religious ministry and other officers or personnel of religious institutions
    2. otherwise requires a Working with Children Check clearance for the purposes of their role in the institution but it should not apply to individual foster carers or kinship carers
  2. the failure to report offence should apply if the person fails to report to police in circumstances where they know, suspect, or should have suspected (on the basis that a reasonable person in their circumstances would have suspected and it was criminally negligent for the person not to suspect), that an adult associated with the institution was sexually abusing or had sexually abused a child
  3. relevant institutions should be defined to include institutions that operate facilities or provide services to children in circumstances where the children are in the care, supervision or control of the institution. Foster and kinship care services should be included (but not individual foster carers or kinship carers). Facilities and services provided by religious institutions, and any services or functions performed by persons in religious ministry, should be included
  4. if the knowledge is gained or the suspicion is or should have been formed after the failure to report offence commences, the failure to report offence should apply if any of the following circumstances apply:
    1. a child to whom the knowledge relates or in relation to whom the suspicion is or should have been formed is still a child (that is, under the age of 18 years)
    2. the person who is known to have abused a child or is or should have been suspected of abusing a child is either:
      • still associated with the institution
      • known or believed to be associated with another relevant institution
    3. the knowledge gained or the suspicion that is or should have been formed relates to abuse that may have occurred within the previous 10 years
  5. if the knowledge is gained or the suspicion is or should have been formed before the failure to report offence commences, the failure to report offence should apply if any of the following circumstances apply:
    1. a child to whom the knowledge relates or in relation to whom the suspicion is or should have been formed is still a child (that is, under the age of 18 years) and is still associated with the institution (that is, they are still in the care, supervision or control of the institution)
    2. the person who is known to have abused a child or is or should have been suspected of abusing a child is either:
      • still associated with the institution
      • known or believed to be associated with another relevant institution.

This recommendation is under consideration along with other recommendations for legislative amendment.

Government response: For further consideration
Lead agency: Attorney-General's Department (AGD)
Recommendation progress status: Planning

34 - Criminal Justice Report

State and territory governments should:

  1. ensure that they have systems in place in relation to their mandatory reporting scheme and any reportable conduct scheme to ensure that any reports made under those schemes that may involve child sexual abuse offences are brought to the attention of police
  2. include appropriate defences in the failure to report offence to avoid duplication of reporting under mandatory reporting and any reportable conduct schemes.

In relation to (a), this part of the recommendation is complete. The existing South Australian position is consistent with this recommendation. Current Department for Child Protection practice ensures that South Australia Police (SAPOL) is notified of reports of suspected criminal offending.

In relation to (b) – see response to recommendation 33. Appropriate defences in the failure to report an offence will be considered as part of the consideration of the offence generally.

Government response: a) Accepted b) For further consideration
Lead agency: Attorney-General's Department (AGD)
Recommendation progress status: a) Complete b) Planning

35 - Criminal Justice Report

Each state and territory government should ensure that the legislation it introduces to create the criminal offence of failure to report recommended in recommendation 33 addresses religious confessions as follows:

  1. the criminal offence of failure to report should apply in relation to knowledge gained or suspicions that are or should have been formed, in whole or in part, on the basis of information disclosed in or in connection with a religious confession
  2. the legislation should exclude any existing excuse, protection or privilege in relation to religious confessions to the extent necessary to achieve this objective
  3. religious confession should be defined to include a confession about the conduct of a person associated with the institution made by a person to a second person who is in religious ministry in that second person’s professional capacity according to the ritual of the church or religious denomination concerned.

See response to recommendation 33. This recommendation is being considered as part of the general recommendation to create a failure to report offence.

It is also noted that the mandatory reporting obligations contained in the Children and Young People (Safety) Act 2017 do not include any exemption for ministers of religion for reporting information communicated in the confessional.

Government response: Accepted in principle
Lead agency: Attorney-General's Department (AGD)
Recommendation progress status: Planning

36 - Criminal Justice Report

State and territory governments should introduce legislation to create  a criminal offence of failure to protect a child within a relevant institution from a substantial risk of sexual abuse by an adult associated with the institution as follows:

  1. The offence should apply where:
    1. an adult person knows that there is a substantial risk that another adult person associated with the institution will commit a sexual offence against:
      • a child under 16
      • a child of 16 or 17 years of age if the person associated with the institution is in a position of authority in relation to the child
    2. the person has the power or responsibility to reduce or remove the risk
    3. the person negligently fails to reduce or remove the risk
  2. the offence should not be able to be committed by individual foster carers or kinship carers
  3. relevant institutions should be defined to include institutions that operate facilities or provide services to children in circumstances where the children are in the care, supervision or control of the institution. Foster care and kinship care services should be included, but individual foster carers and kinship carers should not be included. Facilities and services provided by religious institutions, and any service or functions performed by persons in religious ministry, should be included
  4. state and territory governments should consider the Victorian offence in section 49C of the Crimes Act 1958 (Vic) as a useful precedent, with an extension to include children of 16 or 17 years of age if the person associated with the institution is in a position of authority in relation to the child.

This recommendation is under consideration along with other recommendations for legislative amendment.

Government response: For further consideration
Lead agency: Attorney-General's Department (AGD)
Recommendation progress status: Planning

37 - Criminal Justice Report

All Australian Directors of Public Prosecutions, with assistance from the relevant government in relation to funding, should ensure that prosecution responses to child sexual abuse are guided by the following principles:

  1. all prosecution staff who may have professional contact with victims of institutional child sexual abuse should be trained to have a basic understanding of the nature and impact of child sexual abuse – and institutional child sexual abuse in particular – and how it can affect people who are involved in a prosecution process, including those who may have difficulties dealing with institutions or person in positions of authority
  2. while recognising the complexity of prosecution staffing and court timetables, prosecution agencies should recognise the benefit to victims and their families and survivors of continuity in prosecution team staffing and should take steps to facilitate, to the extent possible, continuity in staffing of the prosecution team involved in a prosecution
  3. prosecution agencies should continue to recognise the importance to victims and their families and survivors of the prosecution agency maintaining regular communication with them to keep them informed of the status of the prosecution unless they have asked not to be kept informed
  4. witness assistance services should be funded and staffed to ensure that they can perform their task of keeping victims and their families and survivors informed and ensuring that they are put in contact with relevant support services, including staff trained to provide a culturally appropriate service for Aboriginal and Torres Strait Islander victims and survivors. Specialist services for children should also be considered
  5. particularly in relation to historical allegations of institutional child sexual abuse, prosecution staff who are involved in giving early charge advice or in prosecuting child sexual abuse matters should be trained to:
    1. be non-judgmental and recognise that many victims of child sexual abuse will go on to develop substance abuse and mental health problems, and some may have a criminal record
    2. focus on the credibility of the complaint or allegation rather than focusing only on the credibility of the complainant
  6. prosecution agencies should recognise that children with disability are at a significantly increased risk of abuse, including child sexual abuse. Prosecutors should take this increased risk into account in any decisions they make in relation to prosecuting
    child sexual abuse offences.

The Office of the Director of Public Prosecutions (ODPP) has established a specialist prosecution team to deal with child sexual abuse practices. ODPP practices are consistent with these recommendations.

Government response: Accepted
Lead agency: Attorney-General's Department (AGD)
Recommendation progress status: Complete

38 - Criminal Justice Report

Each state and territory government should facilitate the development of standard material to provide to complainants or other witnesses in child sexual abuse trials to better inform them about giving evidence. The development of the standard material should be led by Directors of Public Prosecutions in consultation with Witness Assistance Services, public defenders (where available), legal aid services and representatives of the courts to ensure that it:

  1. is likely to be of adequate assistance for complainants who are not familiar with criminal trials and giving evidence
  2. is fair to the accused as well as to the prosecution
  3. does not risk rehearsing or coaching the witness.

This recommendation has been met.

Government response: Accepted
Lead agency: Attorney-General's Department (AGD)
Recommendation progress status: Complete

39 - Criminal Justice Report

All Australian Directors of Public Prosecutions should ensure that prosecution charging and plea decisions in prosecutions for child sexual abuse offences are guided by the following principles:

  1. prosecutors should recognise the importance to complainants of the correct charges being laid as early as possible so that charges are not significantly downgraded or withdrawn at or close to trial. Prosecutors should provide early advice to police on appropriate charges to lay when such advice is sought
  2. regardless of whether such advice has been sought, prosecutors should confirm the appropriateness of the charges as early as possible once they are allocated the prosecution to ensure that the correct charges have been laid and to minimise the risk that charges will have to be downgraded or withdrawn closer to the trial date
  3. while recognising the benefit of securing guilty pleas, prosecution agencies should also recognise that it is important to complainants – and to the criminal justice system – that the charges for which a guilty plea is accepted reasonably reflect the true criminality of the abuse they suffered
  4. prosecutors must endeavour to ensure that they allow adequate time to consult the complainant and the police in relation to any proposal to downgrade or withdraw charges or to accept a negotiated plea and that the complainant is given the opportunity to obtain assistance from relevant witness assistance officers or other advocacy and support services before they give their opinion on the proposal. If the complainant is a child, prosecutors must endeavour to ensure that they give the child the opportunity to consult their carer or parents unless the child does not wish to do so.

The practices, prosecution policies and guidelines of Office of the Director of Public Prosecutions are consistent with these recommendations.

Government response: Accepted
Lead agency: Attorney-General's Department (AGD)
Recommendation progress status: Complete

40 - Criminal Justice Report

Each Australian Director of Public Prosecutions should:

  1. have comprehensive written policies for decision-making and consultation with victims and police
  2. publish all policies online and ensure that they are publicly available
  3. provide a right for complainants to seek written reasons for key decisions, without retracting from an opportunity to discuss reasons in person before written reasons are provided.

The Office of the Director of Public Prosecutions practices and policies are consistent with these recommendations.

Government response: Accepted
Lead agency: Attorney-General's Department (AGD)
Recommendation progress status: Complete

41 - Criminal Justice Report

Each Australian Director of Public Prosecutions should establish a robust and effective formalised complaints mechanism to allow victims to seek internal merits review of key decisions.

This recommendation has been met.

Government response: Accepted
Lead agency: Attorney-General's Department (AGD)
Recommendation progress status: Complete

42 - Criminal Justice Report

Each Australian Director of Public Prosecutions should establish robust and effective internal audit processes to audit their compliance with policies for decision-making and consultation with victims and police.

This recommendation has been met. The Office of the Director of Public Prosecutions maintains processes to audit its compliance with its policies regarding decision-making and consultation with victims and police.

Government response: Accepted
Lead agency: Attorney-General's Department (AGD)
Recommendation progress status: Complete

43 - Criminal Justice Report

Each Australian Director of Public Prosecutions should publish the existence of their complaints mechanism and internal audit processes and data on their use and outcomes online and in their annual reports.

This recommendation has been met with respect to the publication of the Office of the Director of Public Prosecution’s complaints mechanism. Publication of the data on its use and outcomes is yet to be undertaken.

Government response: Accepted
Lead agency: Attorney-General's Department (AGD)
Recommendation progress status: Implementing

44 - Criminal Justice Report

In order to ensure justice for complainants and the community, the laws governing the admissibility of tendency and coincidence evidence in prosecutions for child sexual abuse offences should be reformed to facilitate greater admissibility and cross-admissibility of tendency and coincidence evidence and joint trials.

Recommendations 44-51 of the Criminal Justice Report have been referred to a national working group reporting to the Council of Attorneys-General (CAG). The Uniform Evidence Law working group participants have agreed to draft a model Bill to implement reform proposals.  The Government of South Australia intends to have regard to the position adopted in the Uniform Evidence Law jurisdictions, when finalised, in formulating its response to this recommendation.

Government response: For further consideration
Lead agency: Attorney-General's Department (AGD)
Recommendation progress status: Planning

45 - Criminal Justice Report

Tendency or coincidence evidence about the defendant in a child sexual offence prosecution should be admissible:

  1. if the court thinks that the evidence will, either by itself or having regard to the other evidence, be ‘relevant to an important evidentiary issue’ in the proceeding, with each of the following kinds of evidence defined to be ‘relevant to an important evidentiary issue’ in a child sexual offence proceeding:
    1. evidence that shows a propensity of the defendant to commit particular kinds of offences if the commission of an offence of the same or a similar kind is in issue in the proceeding
    2. evidence that is relevant to any matter in issue in the proceeding if the matter concerns an act or state of mind of the defendant and is important in the context of the proceeding as a whole
  2. unless, on the application of the defendant, the court thinks, having regard to the particular circumstances of the proceeding, that both:
    1. admission of the evidence is more likely than not to result in the proceeding being unfair to the defendant
    2. if there is a jury, the giving of appropriate directions to the jury about the relevance and use of the evidence will not remove the risk.

See response to recommendation 44.

Government response: For further consideration
Lead agency: Attorney-General's Department (AGD)
Recommendation progress status: Planning

46 - Criminal Justice Report

Common law principles or rules that restrict the admission of propensity or similar fact evidence should be explicitly abolished or excluded in relation to the admissibility of tendency or coincidence evidence about the defendant in a child sexual offence prosecution.

See response to recommendation 44.

Government response: For further consideration
Lead agency: Attorney-General's Department (AGD)
Recommendation progress status: Planning

47 - Criminal Justice Report

Issues of concoction, collusion or contamination should not affect the admissibility of tendency or coincidence evidence about the defendant in a child sexual offence prosecution. The court should determine admissibility on the assumption that the evidence will be accepted as credible and reliable, and the impact of any evidence of concoction, collusion or contamination should be left to the jury or other fact-finder.

See response to recommendation 44.

Government response: For further consideration
Lead agency: Attorney-General's Department (AGD)
Recommendation progress status: Planning

48 - Criminal Justice Report

Tendency or coincidence evidence about a defendant in a child sexual offence prosecution should not be required to be proved beyond reasonable doubt.

See response to recommendation 44.

Government response: For further consideration
Lead agency: Attorney-General's Department (AGD)
Recommendation progress status: Planning

49 - Criminal Justice Report

Evidence of:

  1. the defendant’s prior convictions
  2. acts for which the defendant has been charged but not convicted (other than acts for which the defendant has been acquitted) should be admissible as tendency or coincidence evidence if it otherwise satisfies the test for admissibility of tendency or coincidence evidence about a defendant in a child sexual offence prosecution.

See response to recommendation 44.

Government response: For further consideration
Lead agency: Attorney-General's Department (AGD)
Recommendation progress status: Planning

50 - Criminal Justice Report

Australian governments should introduce legislation to make the reforms we recommend to the rules governing the admissibility of tendency and coincidence evidence.

See response to recommendation 44.

Government response: For further consideration
Lead agency: Attorney-General's Department (AGD)
Recommendation progress status: Planning

51 - Criminal Justice Report

The draft provisions in Appendix N provide for the recommended reforms for Uniform Evidence Act jurisdictions. Legislation to the effect of the draft provisions should be introduced for Uniform Evidence Act jurisdictions and non-Uniform Evidence Act jurisdictions.

See response to recommendation 44.

Government response: For further consideration
Lead agency: Attorney-General's Department (AGD)
Recommendation progress status: Planning

52 - Criminal Justice Report

State and territory governments should ensure that the necessary legislative provisions and physical resources are in place to allow for the prerecording of the entirety of a witness’s evidence in child sexual abuse prosecutions. This should include both:

  1. in summary and indictable matters, the use of a pre-recorded investigative interview as some or all of the witness’s evidence in chief
  2. in matters tried on indictment, the availability of pre-trial hearings to record all of a witness’s evidence, including cross-examination and re-examination, so that the evidence is taken in the absence of the jury and the witness need not participate in the trial itself.

The current South Australian provisions are largely consistent with this recommendation. However, the recommendation is broader in application than the current legislative provisions. Further consideration is being given to amendment of the legislation in line with this recommendation.

Government response: Accepted in principle
Lead agency: Attorney-General's Department (AGD)
Recommendation progress status: Planning

53 - Criminal Justice Report

Full prerecording should be made available for:

  1. all complainants in child sexual abuse prosecutions
  2. any other witnesses who are children or vulnerable adults
  3. any other prosecution witness that the prosecution considers necessary.

The current South Australian provisions are largely consistent with this recommendation. However, the recommendation is broader in application than the current legislative provisions. Further consideration is being given to amendment of the legislation in line with this recommendation.

Government response: Accepted in principle
Lead agency: Courts Administration Authority (CAA)
Recommendation progress status: Planning

54 - Criminal Justice Report

Where the prerecording of cross-examination is used, it should be accompanied by ground rules hearings to maximise the benefits of such a procedure.

The current South Australian provisions and the relevant court rules allow for directions hearings to be held to address these issues.

Government response: Accepted
Lead agency: Courts Administration Authority (CAA)
Recommendation progress status: Complete

55 - Criminal Justice Report

Staff and territory governments should work with courts to improve the technical quality of closed circuit television and audio visual links and the equipment used and staff training in taking and replaying pre-recorded and remote evidence.

Audio visual link equipment is available in every staffed court in South Australia, with multiple units in all larger sites. The quality is at times impacted by locations with a low band-width.

An independent review of the audio visual link system has commenced and will conclude at the end of February 2020.

Government response: Accepted
Lead agency: Courts Administration Authority (CAA)
Recommendation progress status: Implementing

56 - Criminal Justice Report

State and territory governments should introduce legislation to require the audio-visual recording of evidence given by complainants and other witnesses that the prosecution considers necessary in child sexual prosecutions, whether tried on indictment or summarily, and to allow these recordings to be tendered and relied on as the relevant witness's evidence in any subsequent trial or retrial. The legislation should apply regardless of whether the relevant witness gives evidence live in court, via closed circuit television or in a pre-recorded hearing.

The current South Australian provisions are largely consistent with this recommendation. However, the recommendation is broader in application than the current legislative provisions. Further consideration is being given to amendment of the legislation in line with this recommendation.

Government response: Accepted in principle
Lead agency: Courts Administration Authority (CAA)
Recommendation progress status: Planning

57 - Criminal Justice Report

State and territory governments should ensure that the courts are adequately resourced to provide this facility, in terms of both the initial recording and its use in any subsequent trial or retrial.

Witness suites that have the ability to record either directly or with centrally coordinated assistance are currently available in 7 metropolitan and 6 country court locations. Audio visual link equipment continues to be expanded and provided from within existing budget allocations.

An independent review of the audio visual link system has commenced and will conclude at the end of February 2020.

Government response: Accepted
Lead agency: Courts Administration Authority (CAA)
Recommendation progress status: Implementing

58 - Criminal Justice Report

If it is not practical to record evidence given live in court in a way that is suitable for use in any subsequent trial or retrial, prosecution guidelines should require that the fact that a witness may be required to give evidence again in the event of a retrial be discussed with witnesses when they make any choice as to whether to give evidence via pre-recording, closed circuit television or in person.

The practice of the Office of the Director of Public Prosecutions is consistent with this recommendation.  A formal policy/guideline is yet to be completed.

Government response: Accepted
Lead agency: Attorney-General's Department (AGD)
Recommendation progress status: Implementing

59 - Criminal Justice Report

State and territory governments should establish intermediary schemes similar to the Registered Intermediary Scheme in England and Wales which are available to any prosecution witness with a
communication difficulty in a child sexual abuse prosecution. Governments should ensure that the scheme:

  1. requires intermediaries to have relevant professional qualifications to assist in communicating with vulnerable witnesses
  2. provides intermediaries with training on their role and in understanding that their duty is to assist the court to communicate with the witness and to be impartial
  3. makes intermediaries available at both the police interview stage and trial stage
  4. enables intermediaries to provide recommendations to police and the court on how best to communicate with the witness and to intervene in an interview or examination where they observe a communication breakdown.

The current South Australian provisions provide for communication partners to assist vulnerable witnesses is consistent with this recommendation.

Government response: Accepted
Lead agency: Attorney-General's Department (AGD)
Recommendation progress status: Complete

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Page last updated: 5 December 2019